April 1989, when more than 300,000 pro-choice demonstrators marched in Washington, DC

This article is a preview from the Spring 2019 edition of New Humanist

The appointment of Brett Kavanaugh to the US Supreme Court after a hugely divisive confirmation process sets the stage for the Court to reopen the fundamental question of whether a woman’s right to abortion is protected by the US Constitution. This was a protection famously established 1973 in the case of Roe vs Wade, when the Court held that the right to abortion falls within the right to privacy in the Constitution’s Fourteenth Amendment.

The Supreme Court’s role in American society is hugely political. Nine justices sit on the Court. Before Kavanaugh’s confirmation, the Court had four avowedly conservative justices (Roberts, Thomas, Alito and Gorsuch) on one side and four avowedly liberal justices (Ginsburg, Breyer, Kagan and Sotomayor) on the other. In the middle, often casting the decisive “swing” vote, was Justice Anthony Kennedy. Kennedy, a Reagan appointee, generally tilted towards the conservative camp, but not consistently so – he voted for constitutional recognition for same-sex marriage, and also co-authored the majority opinion in another landmark abortion case in 1992, Planned Parenthood vs Casey, which to the disappointment of conservatives upheld Roe’s core principle. Kennedy’s retirement gave President Trump the opportunity to appoint a reliably conservative justice, and secure an inbuilt 5-4 conservative majority on the Court.

This bodes ill for abortion rights. The five conservative justices on the court are all, to a greater or lesser degree, “originalists” – and they are also all Catholics. Originalism is a judicial philosophy which holds that the US Constitution should be interpreted according to the meaning of its words at the time they were drafted. Anything else, an originalist would say, is unacceptable judicial activism. Originalism contrasts with the liberal view that the text of a constitution is a living instrument, the meaning of which should be constantly updated to reflect changing social attitudes, for example on same sex marriage or abortion. Originalists argue that this is an illegitimate usurpation of the legislative function – judges are appointed to interpret laws written by legislators, not to become legislators themselves. In the originalist view, no “right” to reproductive choice (or indeed to same-sex marriage) can be identified in the words of the US Constitution when those words are interpreted according to their meaning at the time they were written: the founding fathers, and their successor legislators who passed the Fourteenth Amendment in 1868, plainly never intended to create a “right” to an abortion.

For an originalist, any constitutional protection of the right to abortion should be removed, and the matter simply left for voters in individual US states to decide. The likely effect of this can be seen by looking at abortion laws in the US just before Roe was decided in 1973: 30 states banned abortion outright, except where necessary to save the mother’s life, and 16 more had severe restrictions.

Moreover, when it comes to abortion, the Catholicism of the majority of justices may also be relevant. Religious affiliation does not translate reductively into judicial decision making: one of the architects of Roe was Justice William Brennan, a Catholic who was personally opposed to abortion, but who believed that religious faith should play no role in judging. Nonetheless, in analysing Supreme Court decisions in abortion cases since Roe, the American legal scholar Geoffrey Stone found compelling evidence that Catholic justices had a greater tendency to vote in favour of reducing rights. Stone’s conclusion that justices’ religious beliefs have tended to influence their thinking on abortion reinforces the likelihood of a majority on the current Supreme Court wanting to change the law.

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So what might happen next? First, some historical context. For much of America’s early history, at least until the 19th century, abortion was not unlawful: it was permitted up to “quickening” (the start of foetal movement). It was only from the mid-19th century that most US states started to ban abortion. Some historians have analysed this trend as part of a conservative, nativist reaction to growing female independence and ethnic diversity. One anti-abortion campaigner in 1868 is recorded as asking rhetorically whether, in the absence of an abortion ban, the new states of America’s West and South would be colonised by “our own children or by those of aliens? This is a question our women must answer; upon their loins depends the future destiny of the nation.” So in this context of nativist fears of immigration and racial dilution – a curious echo of our own times – criminalisation of abortion accelerated from the late 1860s onwards.

By 1880, all US states had banned abortion save for limited medical reasons, which in practice meant that safe abortion was only available to wealthier women while poorer women frequently bled to death: in 1930, back-street abortions caused around 20 per cent of recorded maternal deaths. But by the 1960s, as abortion rights became a key part of the agenda of the emerging feminist movement, pro-choice advocates in the US started to have some political success: in 1967, Colorado became the first state to decriminalise abortion in cases of rape and risk to the health of the woman. However, this success was limited: by 1973, abortion still remained illegal, or severely circumscribed, in the majority of US states.

Roe transformed this landscape by holding that the right to abortion fell within the implicit right to privacy (i.e. the right against encroachment by the state) which the Court found in the Due Process Clause of the Fourteenth Amendment. But the right to abortion was not absolute: the Court held that women’s autonomy and right to privacy had to be balanced against the “important state interests in regulation” of abortion, in particular in protecting the mother’s health and the “potentiality of human life”. The Court established a trimester framework for analysing this balance. In the first trimester (i.e. first 12 weeks of pregnancy), the decision as to whether to have an abortion was solely a matter for the woman and her doctor. No state law could impose any restriction on it. From the end of the first trimester until “foetal viability” – the point at which the foetus could potentially survive outside the womb – the state had a compelling interest in protecting the life of the mother: it could regulate abortion for maternal health reasons. At the point of foetal viability, the state’s interest in protecting “potential life” became compelling, and thereafter the state could prohibit abortion so long as it made an exception to preserve the life or health of the mother. As a result of Roe, many state laws banning or restricting abortion were automatically invalidated. Backstreet abortions were largely consigned to the past; several generations of American women have now grown up being able to control their own bodies and exercise reproductive choice.

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In its next landmark abortion case, Planned Parenthood vs Casey in 1992, the Supreme Court modified Roe’s trimester framework but reaffirmed its “essential holding”, confirming that abortion is one of those matters of “personal dignity and autonomy” which are “central to the liberty protected by the Fourteenth Amendment”. However, whereas Roe held that the state could not regulate abortions at all in the first trimester, Casey held that the state could now regulate abortions prior to foetal viability, providing such regulation did not constitute an “undue burden” in the way of the woman’s access to abortion. The Court explained that an “undue burden” is any legal restriction that has “the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a non-viable foetus”. Of course, a judge’s view of whether an obstacle to abortion is “substantial” might be different from that of a pregnant woman who is actually faced with it. In Casey itself, the Court upheld four Pennsylvania state regulations seeking to trammel abortion access (for example, a requirement that minors must seek parental consent), although a fifth – a spousal notification requirement – was ruled out as an “undue burden”.

Casey was generally seen as a blow to anti-abortion campaigners. The composition of the Court at that time – dominated as it was by justices appointed by Republican Presidents – raised expectations that the Court would overrule Roe. The core holding of Roe was reaffirmed, and in upholding it, the Supreme Court cemented it further in US jurisprudence as an unshiftable precedent. At the same time, however, the “undue burden” test, and its application to abortions in the first trimester (which had previously been safe from state interference), might leave abortion rights looking more vulnerable if the test were to be applied weakly, as many complained it had been in Casey itself, where several state regulations designed to inhibit abortion were upheld. Pro-choice advocates have warned that the Casey decision, and particularly the vagueness of “undue burden”, could, as one put it recently, “make Roe harder to overturn, but easier to gut”.

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What might the Supreme Court do now? There will be no shortage of opportunities to rule on abortion: a raft of cases concerning new state restrictions on abortion are working their way up through the lower courts. Any of these might put the issue before the Supreme Court again – indeed this looks imminent at the time of writing, so an indication of the Court’s direction of travel is likely sooner rather than later. One conservative Catholic commentator, Matthew Schmitz, has urged the conservative majority to do the reverse of what the liberal majority did: whereas Roe found a right to privacy in the Fourteenth Amendment which included the right to an abortion, he argues that a conservative Court should hold that a foetus is a person deserving of the protection of the Fourteenth Amendment, and thus enjoying a “right to life”.

This seems highly unlikely: it would make a mockery of the originalist views of the conservative justices, since self-evidently the authors of the Fourteenth Amendment did not intend to protect the life of the unborn foetus. So there are now essentially two possibilities. One is that Roe is overruled in its entirety, leaving states at liberty to pass whatever laws they want in regard to abortion – pro or anti. Inevitably, this would lead to two Americas, with the more liberal states preserving a woman’s right to choose, whilst many others heavily restrict abortion or ban it altogether. The other possibility is that the “undue burden” test, or some new version of it, is applied so weakly that abortion rights are incrementally whittled down. In the longer term, this may have much the same impact.

Roe is protected to some degree by the legal doctrine of stare decisis: respect for precedent (i.e. past decisions of the Court). For conservative judges especially, respect for precedent plays a central role in promoting the stability of the legal system, enabling citizens to order their affairs secure in the knowledge that judges will not whimsically change the law. Indeed, the importance of stare decisis was acknowledged by Kavanaugh in his confirmation hearings. So it is difficult for the Court simply to junk a landmark precedent, even a liberal one like Roe. For conservative judges to abandon their professed respect for precedent by overturning Roe might imperil the legitimacy of the Court itself.

US conservatives are fond of complaining about “judicial activism”; judges, they argue, should be wary of countermanding the will of the voters and becoming legislators themselves. Yet the two most recently appointed Supreme Court justices – Gorsuch and Kavanaugh – have been appointed by a President, Trump, who won 3 million fewer votes in the Presidential election than his pro-choice Democratic opponent. So whilst the conservative majority on the Court may be tempted to use its new-found power to revoke Roe, the consequence of doing so would be an erosion of the Court’s legitimacy – a risk even justices with strong anti-abortion views may be reluctant to take.

A less dramatic alternative would be to neuter Roe by allowing state restrictions to a much greater extent than before, either by reinterpreting the “undue burden” test so as to rob it of meaning, or by creating a new test with the same outcome. So whilst the Supreme Court – now in the hands of a group of male, conservative Catholic judges, whose views of abortion are at odds with the majority of their fellow citizens – may shy away from a full-on reversal of Roe, it seems very likely to try to nullify the rights it conferred on women by other less obvious means, so that Constitutional guarantees will be stripped of meaning and the right to choose will be put beyond the reach of many. This is an extraordinarily perverse outcome in a country in which the majority of voters in six out of the last seven Presidential elections preferred a pro-choice candidate, but it is difficult to see how it can now be avoided.